California Adopts New Furniture Flammability Standards; Hundreds of Companies Are Named in Prop 65 Lawsuits for Using Certain Flame Retardants

New Flammability Standard in California

The California agency that sets California's furniture standards, the Bureau of Home Furnishings, recently adopted amendments to its longstanding flammability standards for upholstered furniture in Technical Bulletin 117. California's prior flammability standards had become a lightning rod for environmental activists, who claimed that those standards led to the widespread use across the country of chemical flame retardants, which they view as hazardous.

Under the amendments, by January 1, 2015 certain upholstered furniture must meet a new "smolder" test, which is less stringent than the prior standard's "open-flame" test. California adopted the new smolder test standard to avoid the need for using chemical flame retardants. In addition, a number of children's products are exempt (with some exceptions) from the flammability and labeling requirements of the new rule, such as infant changing pads, infant seats, and nursing pads. The adoption of the amendments coincides with recent media coverage and publicity concerning chemical flame retardants, which involved the release of a documentary entitled, "Toxic Hot Seat" as well as a response by manufacturers of chemical flame retardants.

Under the new rule, manufacturers must test cover fabrics, barrier materials, resilient filling materials such as foam, and "decking" materials (the upholstered support under a seat cushion) against smolder standards. Manufacturers must also use a new form of label indicating that the products meet the new standard. Manufacturers must meet these flammability and labeling requirements beginning January 1, 2015. The agency stated that the January 1, 2015 deadline will give manufacturers sufficient time to deplete current inventory and that retailers can continue to sell through their inventory of products existing before January 1, 2015 without any sell-through deadline. For products that California retailers purchase on and after January 1, 2015, those products must meet the new standards.

Proposition 65 Lawsuits

Since 2012, plaintiffs have been targeting suppliers and retailers of upholstered and foam-cushioned products in a series of California Proposition 65 lawsuits. These plaintiffs have issued hundreds of Proposition 65 notice letters and filed dozens of lawsuits regarding "TDCPP" in furniture products and in children's nap mats and mattresses. TDCPP was listed as a carcinogen under Proposition 65 in October 2011, and the listing took effect by law in October 2012. Two other chemicals listed under Proposition 65 are also used as chemical flame retardants, "TCEP and TDBPP." Beyond these three Proposition 65-listed chemicals, there are various other halogenated or phosphorous-based compounds that have been used as chemical flame retardants.

The plaintiffs in these cases have reached settlements with an initial set of defendants, and those settlements are pending court approval. The settlements prohibit the use of Proposition 65-listed chemical flame retardants such as TDCPP. Furthermore, one of the settlements (by a plaintiff called the Center for Environmental Health) allows defendants to avoid an additional civil penalty in exchange for an optional reformulation to remove all chemical flame retardants from covered products, not merely Proposition 65-listed flame retardants. This optional reformulation term drew criticism from certain industry groups, which argued that it was an underground regulation. The American Chemistry Council and the National Federation of Independent Business unsuccessfully sought permission from the court to file an amicus brief opposing entry of the proposed settlement.

The court hearing on this settlement is scheduled for January 24, during which the court may approve or deny entry of the settlement, or request additional information or modifications before approving the settlement. If the court approves the settlement, it is very likely to set a template for future settlements that the Center for Environmental Health seeks in its Proposition 65 cases involving flame retardants.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.